Allahabad High Court
Ashraf Ali vs State Of U.P. And Another on 11 November, 2024
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:176542
Court No. - 77
Case :- APPLICATION U/S 482 No. - 17498 of 2024
Applicant :- Ashraf Ali
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Diwan Saifullah Khan
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
1. Heard Shri Diwan Saifullah Khan, learned counsel for the applicant and Shri B.N. Upadhyay, learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed challenging the notice dated 24.04.2024 under Section 111 Cr.P.C. issued by opposite party-2, Special Executive Magistrate/Assistant Commissioner of Police, Police Line City-II, Commissionerate, Varanasi in Criminal Case No. 1486 of 2024, under Section 110(G) Cr.P.C., Police Station-Jaitpura, District-Commissionerate Varanasi.
3. Learned counsel for the applicant submits that the challan report dated 11.4.2024, under Section 110(G) Cr.P.C. has been submitted without considering the position of law. The impugned notice has been issued on the basis of solitary case crime No. 26 of 2022. It is further submitted that the notice issued is patently illegal, wherein particulars as well as substance of police report has not been mentioned and no personal satisfaction of the authority has also been recorded.
4. Learned counsel for the applicant relied upon the judgment of this Court in Baleshwar Vs. State of U.P., 2008 (63) ACC 374 wherein a learned Single Judge has observed as follows in paragraph Nos. 6, 7 and 8:
"6. Having given my thoughtful consideration to the rival submissions made by parties Counsel and after going the impugned notice, I find force in the aforesaid contention of the learned Counsel for the applicants that the impugned notice is wholly illegal and void. Annexure 1 is the copy of the impugned notice, which was issued by SDM Mawana (Meerut) to the applicants, whereby they were called upon to appear on 10.12.2004 and show cause as to why they be not ordered to execute a personal bond for Rs. 30,000/- and furnish two sureties each in the like amount to keep peace for a period of one year. In this notice it is only mentioned by the SDM concerned that he is satisfied with the report of S.O. of P.S. Mawana that due to old litigation, there is enmity between the parties, due to which there is likelihood of the breach of peace. It is not mentioned in this notice that what type of litigation is going on between the parties and in which Court the said litigation is pending. Number of the case and other details of the said litigation have also not been mentioned in the impugned notice. As such the impugned notice issued by the learned SDM Mawana is vague and it does not fulfil the requirements of Section 111, Cr.P.C. This type of notice has been held to be illegal by this Court in the case of Ranjeet Kumar v. State of U.P. (supra).
7. Making an order under Section 111 of the Code is not an idle formality. It should be clear on the face of the order under Section 111, Cr.P.C. that the order has been passed after application of judicial mind. If no substance of information is given in the order under Section 111, the person against whom the order has been made will remain in confusion. Section 114 of the Code provides that the summons or warrants shall be accompanied by a copy of the order made under Section 111. This salutary provision has been enshrined in the Code to give notice of the facts and the allegations which are to be met by the person against whom the proceedings under Section 107, Cr.P.C. are drawn.
8. It should be borne in mind that the proceedings under Section 107/116 of the Code some times cause irreparable loss and unnecessary harassment to the public, who run to the Court at the costs of their own vocations of life. Unless it is absolutely necessary, proceedings under Section 107/116, Cr.P.C. should not be resorted to. Experience tells that proceedings like the one under Section 107/116 of the Code are conducted in a most lethargic and lackadaisical manner by the learned Executive Magistrate causing harassment to public beyond measure."
5. It is further submitted that the matter with regard to co-accused Mustaqeem is quashed by a Coordinate Bench of this Court in Application U/S 482 No. 17511 of 2024 on 2.9.2024.
6. Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that since sufficient material exists on record necessitating the issuance of notice under Section 111 Cr.P.C. therefore, no interference is warranted by this Court.
7. In view of above, this Court has itself examined the impugned notice dated 24.04.2024, issued by opposite party-2, Special Executive Magistrate/Assistant Commissioner of Police, Police Line City-II, Commissionerate, Varanasi under Section 111 Cr.P.C. Upon examination, the Court finds that the impugned notice contains a bare recital that there is apprehension of breach of peace. The same does not contain full substance of information given by concerned Police Officer nor does it show the satisfaction of opposite party-2 necessitating an order under Section 111 Cr.P.C. The same contains a bald conclusion. Consequently, concerned Magistrate has not acted judiciously while issuing the impugned notice dated 24.04.2024.
8. In view of above, the impugned notice dated 24.04.2024, issued by opposite party-2, Special Executive Magistrate/Assistant Commissioner of Police, Police Line City-II, Commissionerate, Varanasi, cannot be sustained. The same is, therefore, liable to be quashed.
9. As a result, present application succeeds and is liable to be allowed.
10. It is, accordingly, allowed.
11. The impugned notice dated 24.04.2024 issued by opposite party-2, Special Executive Magistrate/Assistant Commissioner of Police, Police Line City-II, Commissionerate, Varanasi is, hereby, quashed.
Order Date :- 11.11.2024
T. Sinha
